Draft National IPR Policy : Gauging the Sentiment in Washington D.C.

Image - US - India IPR Relations
Image Courtesy : www.manufacturingchemist.com

Source: Draft National IPR Policy : Gauging the sentiment in Washington D.C.

Ahead of the 2016 Special 301 Report, I write on the prevailing mood in Washington D.C. Editing courtesy vests with Sahil Yadav.

In the third last paragraph, “ Public Knowledge” has been mentioned erroneously. It stands corrected to “Public Citizen“.

India finishes Second Last in the Global IP Index

For the benefit of readers, point (e) of the post, ” not a contracting party to any of the international IP treaties referenced in the Index” refers to the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty” and the Singapore Treaty on the Law of Trademarks.

Seemantani Sharma

Today has been an unusually busy day for anyone who keenly follows IP law and policy due to  two very important events that took place in Washington, D.C. One was the release of the international IP Index by the U.S. Chambers of Commerce and the second was the CATO Institute’s panel discussion on Intellectual Property and First Principles.

Couple of hours back, just when I was winding up my first blog post for ISGLP titled “ India’s Tryst with the Special 301 Process : The Story Until Now and Future“, my phone beeped signaling the release of the 4th Annual International IP index by the Global Intellectual Property Center (I’ll share the blog post once it’s published).

To my utter dismay, India was ranked 37th out of 38th economies vis – a-vis international best practices on IP law. The reasons attributed to India’s laggard performance was the same…

View original post 210 more words

My Blog Post On India And The Special 301 Process

Last year when soliciting feedback on my blog,  my dear friend Pratik Sanwaria had asked me to cover the Special 301 Process. That time, I procrastinated his cogent suggestion even though the India – U.S IPR standoff is of immense interest to me.

With the release of the 2016 Global IP Index and the 2016 Special 301 Report due for release, I thought the time was ripe to dig my nose into these issues. Hence, when I was asked to start the ISGLP’s IPR blog, I readily chose to write on the Special 301 Process in the context of India. (For people interested in the Global IP Index, read my post here).

The blog post titled, ” India’s Tryst With the Special 301 Process : The Story Until Now and Future” can be read here. Due to technical constraints, currently there is neither a comments section nor social media icons to share the post via ISGLP’s blog. Thus, for wider dissemination and constructive feedback, kindly use this platform.

ISGLP logo
ISGLP’s IPR Blog

I’m also in the process of writing a paper critically analyzing India’s designation under the Report since it’s inception until 2016. Once published, I’ll share it.

Event Reporter : CATO Institute’s Panel Discussion on IP and First Principles

CATO Institue
This trademark is the exclusive property of the CATO Institute including any interest and title that may arise under it. CATO Institute DOES NOT endorse the views of this blog post.

INTRODUCTION :

Apologies for my inability to give an in – person account of CATO Institute’s Panel Discussion on Intellectual Property and First Principles . The absence to attend emanating from a clash with an important meeting.

In some of my previous posts (see here and here), I’ve mentioned about my keen interest in the jurisprudential and constitutional underpinnings of IP. Hence, I made a sincere attempt to decipher many of the issues by listening to the podcast thrice ( Absolutely no exaggeration! Prof.Epstein’s portion of the discussion is particularly intriguing to my not – so – sharpened interdisciplinary approach to IP).

US Constitution
Image Courtesy www.godfatherpolitics.com

Randolph J. May of the Free State Foundation, Prof. Richard A. Epstein of the NYU Law School,  Jim Harper of the CATO Institute, Eli Dourado  of the Mercatus Center, George Mason University comprised the erudite panel.  Roger Pilon of the CATO Institute was the moderator.

The panel debated on the divide between conservatives and libertarians on the conception of IP. Essentially, they probed into the fundamental question of whether IP was akin to real property? The constitutional underpinnings of IP protection were also deliberated upon.

For the sake of brevity, I’ll not delve into every argument raised. Only pertinent issues are highlighted. (Those interested can contact me for the complete transcript of the discussion).

THE PANEL DISCUSSION :

The discussion commenced with May talking about his celebrated book, ” The Constitutional Foundations of Intellectual Property” followed by Prof. Epstein’s highly interdisciplinary discourse (at the speed of a maglev bullet train) on IP protection. ( I must confess that it was beyond my feeble comprehension after the first run through of the podcast)

The discussion progressed by Harper taking a different approach to these issues, not as an IP lawyer but as an Information Policy Practitioner . It succeeded with Eli Dourado aligning with Jeremy Benthams’s utilitarian approach to IP. Rebuttals followed by Q & A session concluded the discussion.

Randolph May’s Arguments 

May, by way of reference to his book made a case that the founders of the American Constitution accepted the applicability of Lockean Theory of Property to IP. This was based on four conditional premises, which according to him influenced the Founders –

(I) Each person had the fundamental right to enjoy the fruits of his/her labor including IP.

(II) The fruits of those labor became that person’s property.

(III) Government had a right to protect that property.

(IV) Natural rights had an influence on the drafting of the Progress Clause of the Constitution.

Constitutuonal Foundations of IP
Image Courtesy : www.amazon.com

Further, he pointed out that the Founders imbibed Locke’s view that the Government’s primary purpose was to protect a person’s property including IP. He made a cursory reference to Noah Webster’s , James Madison’s and Abraham Lincoln’s views on property and it’s clout on the final version of the Progress Clause.

Remarks on post – constitutional developments and sub – war era were also made. He concluded by stating that the intellectual, constitutional and historical background viewed copyrights and trademarks as natural rights.

Professor Epstein’s Arguments 

What happens when one of the most frequently cited legal scholars is debating on a seemingly complex topic? You try to grapple with your ignorance by listening to his portion of the podcast thrice and still end up muddying the waters. Hence, I urge all readers to exercise caution while relying upon my interpretation of his arguments.

Following arguments are noteworthy –

(I) He was a sympathetic critique to May’s ( fondly addressed as Randy) natural rights underpinnings to the Progress Clause. For him, it was a matter of political construct rather than a natural one.

(II) He made a scathing remark on Locke’s Theory of Property calling it incomplete and uninspiring.

(III)  He was in favor of a utilitarian conception for protecting IP.

(IV) He was of the opinion that modern IP policy was flawed on grounds of long duration of protection.

He concluded by stating that a strong property rights system with an appropriate duration was more important as it led to reduced rents and genuine innovation. Further, IP in many ways worked better than physical property. To substantiate this, he drew a parallel between IP and real (physical) property.

Jim Harper’s Arguments

Though trained in IP law, Harper’s approached these issues as an Information Policy Practitioner, which was a breath of fresh air. Apart from his thought provoking anecdote on the stray mitten, following pertinent points were made –

(I) His approval of IP as a concept, possibly emanating from his pro – property rights approach. Though he distinguished between IP and real property.

(II) Transposing the property law concept of “abandonment” to IP. While real property was seldom abandoned, abandonment of IP was a common phenomenon.

(III) There was a goal setting problem in IP as the dividends flowing from it were not easy to determine.

(IV) Non – homicidal nature of IP  made it’s protection to many irrational.

He concluded by stating that while protection for real property was visible, same was not true for all forms of IP. Further, he called for IP protection for personal information.

Eli Dourado’s Arguments

Being a libertarian and as an ardent follower of Eli’s work, it is always a lucullan bliss to hear him. To my delight, my prognostication of his arguments were true. Following points were noteworthy –

(I) Aligning with Jeremy Bentham, he stated that IP was deep rooted in libertarian principles.

(II) Congress was not obligated to protect IP under the Progress Clause. It was a discretionary power.

Progress Clause
Image courtesy : www.valuablepatents.com

(III)  His perception on natural rights as not being something normal.

(IV) Application of alternative First Principles to IP.

(V) He was critical of the  retroactive term extension by CTEA. He viewed it as pure rent seeking under the garb of copyright protection which did not lead to the promotion of the Progress Clause.

(v) He lambasted at the role of the Patent Bar in lobbying for the creation of  Court of Appeals for the Federal Circuit. This according to him was an epitome of maneuvering the political system in favor of corporate interests. Further, more than half of patents granted in recent years were software related, which was in sharp contrast to Supreme Court precedents. (For more on this, read his essay here).

He concluded by stating that the judicial decisions had been severely manipulated in favor of IP owners.

CONCLUSION :

A yet another enlightening discussion on one of my emerging areas of interest. No formal announcement in whose favor the debate tilted was made.  However, due to my political affiliation and as Eli’s fan, I personally align to his position that strong IP protection was not necessarily innovation inducing.

May’s argument is a motivator for me to read his book ( I’ve already ordered my copy! ). Prof. Epstein’s  awe inspiring colloquy got my grey cells working really hard (after a long time I must admit! ). And  Harper’s out – of – box approach to these issues combined with witty anecdotes were music to my ears.

Overall, a healthy discussion and not worth missing particularly for those interested in the politics of IP. A piece of advice, “listen to the podcast when time is an article of abundance and when grey cells are at their active best.”

 

 

 

 

 

India finishes Second Last in the Global IP Index

gipc_logo
This trademark is the exclusive property of the Global Intellectual Property Center of the U.S. Chambers of Commerce.  GIPC DOES NOT endorse the views of this blog post.

Today has been an unusually busy day for anyone who keenly follows IP law and policy due to  two very important events that took place in Washington, D.C. One was the release of the international IP Index by the U.S. Chambers of Commerce and the second was the CATO Institute’s panel discussion on Intellectual Property and First Principles.

Couple of hours back, just when I was winding up my first blog post for ISGLP titled “ India’s Tryst with the Special 301 Process : The Story Until Now and Future“, my phone beeped signaling the release of the 4th Annual International IP index by the Global Intellectual Property Center (I’ll share the blog post once it’s published).

To my utter dismay, India was ranked 37th out of 38th economies vis – a-vis international best practices on IP law. The reasons attributed to India’s laggard performance was the same old rhetoric of, (a) Non – conformance with international patentability requirements (b) Unavailability of regulatory data protection and patent term restoration (c) Usage of compulsory licenses for commercial and non – emergency situations (d) Poor application and enforcement of civil remedies and criminal penalties and (e) Not a contracting party to any of the international IP treaties referenced in the Index.  The 2015 Indian Supreme Court’s ruling on notice and takedown requirements for copyright infringement content was also cited as one the areas of weakness. ( Being based out of Washington D.C., I’m unsure as to which decision is being referred to. However, I’ll get back on this soon).

The overall score stood at an appalling 7.05 on a scale of 30 (reflecting measurable criteria critical to innovation including patent, copyright and trademark protections, enforcement and engagement in international treaties)  . While I was not expecting a stellar ranking, the least I expected was India being lauded for it’s sincere efforts to revisit it’s IP regime ( beyond the formalistic statement, “The government of India continued to make positive statements during 2015 on the need to introduce a strong IP environment.”). A cursory remark on the IPR Think Tank and the draft IPR Policy would have been propitious.

Gong Xi Fa Cai, IP and Upcoming Events

As they say, better late than never. The unusual delay in posting this piece is attributable to my ill – health stemming from extensive travel while I was at my home turf and landing amidst Snowzilla ( I was in India for almost three weeks in January after more than a year).

Hence, could there be a better timing than the commencement of the Year of the Monkey to syncopate this deafening silence on my part. Little did I know that my inability to wish the readers a Happy New Year as per the Gregorian calendar was paving the path for me to wish all of you Gong Xi Fa Cai! May the Monkey be an epitome of vitality, prosperity and success for all.

Year of Monkey
Image Courtesy :  www.mixcloud.com 

 

On this occasion, I also want to thank each one of you for your unflinching support to my blogging endeavour. A special thanks to my Philadelphian cousin Terence Tuhinanshu, who not only inspired me to blog but being the dreamer – writer sorts also took upon himself to review my writing ( To know what does it mean to write like a dream, visit his blog).

I’m also grateful to Dr. Amal Punchihewa for his timely encouragement and words of advise, Pratik Sanwaria for giving suggestions on topics to cover, Mario Zuniga, Andras Jokuti and friends back in India for their valuable inputs on improving the blog. Last but not the least my parents who have always held a steadfast belief in my goals.

On the first day of the Chinese Lunar Calendar, I also make a solemn New Year resolution of writing atleast three quality posts every month. While I would ideally want to stick to my previous promise of weekly posts, with a deluge of professional and scholarly commitments, it seems far fetched.

Today, I shall not delve into anything elaborate. For the benefit of readers, I want to highlight two upcoming events which have caught my fancy –

(1) Panel Discussion on Intellectual Property and First Principles

The Cato Institute’s Center for Constitutional Studies and the Federalist Society for Law & Public Policy Studies is organising a panel discussion on how libertarians and conservatives conceive intellectual property. The panel discussion seeks to delve into the question,whether intellectual property was akin to really property in the sense of conferring a natural right upon the owner or was it a government conferred monopoly impeding innovation.

The discussion will be held at Hayek Auditorium on February 10th, 2016 from 11.00 A.M. to 1.00 P.M. Prior registration to the event is imperative. For those who can’t attend, the event will be live webcast.

By now, many of you may be aware of my keen interest in this topic, which essentially goes to the jurisprudential roots of IP protection. I see this topic as an extension of the conversation which took place in one of the panel discussion’s organised by the R Street Institute and Reason in October last year.  For an extensive coverage on that discussion, see my post here.

Given my keen interest in the topic (to the extent that I’ve been researching independently on the topic and deliberating upon writing a paper on it), I’ll be attending the event and doing an extensive commentary and coverage on it. Watch out for the next post on my views on the discussion.

(2) International Conference on Intellectual Property and Development   

The World Intellectual Property Organization (WIPO) is organizing an International Conference on Intellectual Property and Development on April 7 and April 8, 2016 in Geneva.  Prior registration for the Conference is imperative. For those who can’t attend ( I’m on the list. I will not possibly travel to Geneva to attend one Conference even though the topic is of immense interest to me!) , the conference will be live webcast from April 7, 9 : 00 a.m. Geneva time ( Unfortunately, the link to the live webcast is not yet available. I’ll post it as soon as I find about it).

The Conference seeks to delve into the seemingly debatable issue of role of IP in development.  What strikes me most about this Conference is it’s wide range of discourse on the influence of IP on development. Traditionally, I’ve mostly attended or have read about the role of IP in social and economic development (most of the panel discussions that I’ve attended in Washington D.C. revolve on the interplay of IP with economic development). Hence, it’ll be interesting to hear about the role of IP in cultural development.

The agenda for the Conference also states some interesting case studies that will be presented to demonstrate the role of IP on the three facets of development, ” economic, social and cultural.”  Given my interest in Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE), I’m particularly keen to hear about the ” From the heart – Moldovan brands” , ”  Jamaican jerk seasoning” and the ” Amouage luxury perfumes” case studies.  I want to be able to gauge their interrelationship (if any) to TK and TCE.

Needless to say, I’ll be watching the entire live webcast and doing an extensive coverage and commentary on the same.